What Against Settlement Got Right

2021 ◽  
pp. 355-359
Author(s):  
Ellen Waldman
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
State Power ◽  
The Public ◽  
Proper Role

Professor Owen Fiss’s article Against Settlement has, in the more than thirty-five years since its publication, become the essay alternative dispute resolution (ADR) enthusiasts love to hate. It boasts over twelve hundred citations, providing impeccably credentialed support for the proposition that nonadversarial dispute resolution erodes the proper role of the courts and sacrifices justice for an uneasy peace. The essay has had an enduring impact in part because of its poetic, sometimes quixotic, insistence on the public norm-enforcing function of the courts and its vision of litigation as a mechanism whereby state power is used “to bring a recalcitrant reality closer to our chosen ideals” (p. 1089)....

CommentsADR and Public Values Again

2021 ◽  
pp. 351-354
Author(s):  
Amy J. Cohen
Keyword(s):  
Dispute Resolution ◽  
Social Cohesion ◽  
Alternative Dispute Resolution ◽  
Individual Preference ◽  
State Power ◽  
The State ◽  
Public Values ◽  
The Public ◽  
Subjective Preference ◽  
Social Ordering

This comment revisits a long-standing debate about alternative dispute resolution (ADR) and public values. In Against Settlement, Fiss argued that ADR would undermine popular commitments to “public values” (1984). For Fiss, public values are moral truths about rights, justice, and social cohesion that all who comprise “the public” should want to uphold, and which the state is obligated to enforce. Fiss distinguished public values from subjective preference, or what any one individual actually desires. He submitted that by resolving disputes according to individual preference, ADR would replace public values with individual interests and replace state power with private social ordering. Hence, Fiss declared himself against settlement....

13. Justice in the Modern Administrative State

2018 ◽  
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Administrative State ◽  
Wide Range ◽  
Complete Series ◽  
Explanatory Text ◽  
Primary Materials

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the role of a range of accountability methods to scrutinize the executive’s use of power. This includes the work of the Parliamentary Commissioner for Administration, who is now also known as the Parliamentary Ombudsman, the role of tribunals in contrast to courts, of public inquiries and of alternative dispute resolution mechanisms too. It also examines the limitations of each of these methods, and how they may complement each other to provide different forms of scrutiny.

scholarly journals Application of Environmental Conflict Resolution to Public Interest Issues in Water Disputes

2011 ◽  
pp. 1-13 ◽  
Author(s):  
Michael Jeffrey QC ◽  
Donna Craig
Keyword(s):  
Decision Making ◽  
Conflict Resolution ◽  
Public Interest ◽  
Alternative Dispute Resolution ◽  
Full Range ◽  
Environmental Conflict ◽  
The Public ◽  
Environmental Conflict Resolution ◽  
Political Economic

This article examines the role of environmental conflict resolution (ECR) in the public interest issues of water disputes. The article endeavours to  illustrate the strengths and weaknesses of a range of alternative dispute resolution (ADR) and negotiation approaches in the context of decision-making. Although many embrace ECR as the cheaper and more effective alternative to more formalistic and entrenched judicial processes before courts of law and quasi-judicial tribunals, the authors argue that there is an urgent need for a more critical, contextual and issue-oriented approach. In particular, the article highlights the significant difficulties associated with representing the full range of stakeholders who should be involved in an ADR process, and the lack of transparency and procedural safeguards associated with ADR in complex public interest disputes. The strength of ADR in smaller project-specific disputes involving a very limited number of stakeholders is well understood. The authors argue that ADR may have a significant role in scoping the issues and associated research as well as facilitating agreement on procedural aspects of large, complex public interest water disputes. However, ADR has severe limitations as a decision-making process. For example, water conflicts necessarily involve the concept of sustainability that in turn touches on a complex maze of social, political, economic and ecological values. The probability of reaching a mediated settlement in such a context is severely curtailed. A preferable approach may be one that is entirely transparent, capable of being both monitored and enforced, and is binding on all stakeholders whether or not they are parties to the mediation.

Alternative Dispute Resolution and Individual Workplace Rights: The Evolving Role of Fair Work Australia

2011 ◽  
Vol 53 (5) ◽  
pp. 718-732 ◽  
Author(s):  
Therese MacDermott ◽  
Joellen Riley
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Access To Justice ◽  
Traditional Role ◽  
Adverse Action ◽  
Recognition And Enforcement ◽  
Workplace Rights ◽  
The Right ◽  
Resolution Processes

This article examines the dispute resolution practices of Fair Work Australia that are evolving to deal with individual workplace rights, as its traditional role shifts away from conciliating and arbitrating collective industrial disputes. The workplace rights enshrined in the ‘general protections’ provisions in Part 3-1 of the Fair Work Act 2009 protect employees and prospective employees from any ‘adverse action’ taken against them because they are exercising a workplace right, or because they fall within one of the protected categories, such as the right to be free from discrimination. A broad range of alternative dispute resolution processes is now available to Fair Work Australia in dealing with such disputes. Alternative dispute resolution processes are seen as a way of avoiding costly and time-consuming litigation, and in some circumstances can improve access to justice for individuals. This article explores whether Fair Work Australia is likely to adopt different dispute resolution approaches from its traditional conciliation practices when managing ‘general protections’ applications, and whether the framework for dealing with these disputes will facilitate fair recognition and enforcement of workplace rights.

Effectiveness of Dispute Resolution Councils in Alternative Dispute Resolution: A Study of Selected Districts of Khyber Pakhtunkhwa

2020 ◽  
Vol 2 (1) ◽  
pp. 41-55
Author(s):  
Rabia Manzoor ◽  
Syed Shujaat Ahmed ◽  
Vaqar Ahmed
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Equal Opportunity ◽  
Enforcement Mechanism ◽  
Khyber Pakhtunkhwa

Background: Dispute resolution is the process through which conflicts, misunderstandings are handled. It is an effective process for smooth functioning of any sort of organization. It further helps in maintain peace in the society as well as organization. Objective: This study seeks to appraise and evaluate the effectiveness of Dispute Resolution Councils (DRCs) in the select districts of Khyber Pakhtunkhwa, Pakistan. Methods: The effectiveness of ADR forums is gauged through magnitude of satisfaction and trust of beneficiaries accessing its services as well as affordability and timeliness of dispensation of justice to them. Findings: It was found that DRCs have become highly consequential to the peacemaking due to impartial setup and the provision of equal opportunity to parties involved in any case.  Conclusion: Despite the overall success of DRCs, they are still affected by problems such a poor documentation, infrastructure, lack of training and most importantly the absence of any enforcement mechanism of their decisions. Implication: This study puts forth various reforms that may include the standardization of documents, provision of sufficient capital and adequate infrastructure, and auguring the role of these avenues to strengthen the implementation of their decisions.

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